Raising Money: Judges on Campaign Trail

By
Kyle Johnson, Special to The Christian Science Monitor /
August 13, 1998

AUSTIN, TEXAS

Texas Supreme Court Justice Rose Spector knows that it takes unfailing devotion to the law and the spirit of justice to become known as a good high court judge. But first it takes a friendly smile and a taste for watermelon to become one at all.

Her somber black robes waiting stiffly behind in the closet, Justice Spector has attended countless barbecues, eaten mountains of melon, and logged more than 40,000 miles of interstate and backcountry roads in a quest to retain her judgeship.

But there's also a frustrating and highly controversial part to her campaign life: the need to fill a never-full-enough war chest. These tensions - accountability versus impartiality - lie at the center of a debate as old as American jurisprudence itself.

To critics, electing judges puts justice up to the highest bidder, as special-interest groups sway candidates' future decisions by pouring torrents of money into their campaign coffers. To supporters, however, it's the only way to ensure that citizens have a say in how judges do their job. Now, as the campaign season nears its climax, it's a debate that is surfacing nationwide - but particularly here in Texas, where the escalating cost of elections has led to numerous calls for reform.

"It's in the arena of big-time politics," says Spector, one of three Democrats on the Republican-controlled court, now running for her second term. "The races have almost become bigger than some state House [of Representatives] races."

Twenty-two states elect their supreme court justices by one means or another, and 17 more subject their appointed judges to retention elections - a yes-or-no vote to keep their office. But critics have singled out the Lone Star State as an example of the unhealthy influence of money and politics on the judicial system.

In Texas

In 1985, justices on the Democrat-controlled court had received nearly 70 percent of their campaign money from plaintiffs' lawyers and other consumer interests with cases before the court. They issued rulings against big-big business defendants 69 percent of the time.

A tide of "clean slate" Republican justices won control of the nine-member bench in 1988 and vowed to clean up the mess, but many court watchers are now calling it an example of "the more things change, the more they stay the same." In 1995, justices received more than 60 percent of their campaign bankrolls from defense interests, whom they favored in 82 percent of their rulings. The ratio dropped to 67 percent in 1997, however.

"Has the court been bought? Absolutely," says Walt Borges of Court Watch, a nonpartisan group in Austin, Texas, which compiled the statistics. "There's no evidence that interest groups have bought rulings in specific cases ... but what they've bought is the general philosophy of the court. So [the justices] are naturally going to rule in their favor most of the time."

While Texas courts have been the focal point of a national debate over the perils of politicizing the judiciary, "the increase is dramatic across the country," says John Martin, chairman of the American Bar Association's (ABA) year-old Task Force on Lawyers' Political Contributions. For example, campaign costs for the Wisconsin Supreme Court have swollen by more than 784 percent since 1979, according to the ABA. In Alabama, the figure is 786 percent since 1986.

For this reason, the American Judicature Society in Chicago has argued for an appointment process combined with merit selection commissions to fill judicial vacancies. Yet many court watchers - including Mr. Borges - say the system of electing judges needs to be fixed, not thrown out.

"The process is political now, but a system that appoints judges through the legislature or the governor is just as political," he says, alluding to the partisan politics in US Supreme Court and appellate appointments. "This way, at least, it's going on where people can see it and decide to do something about it, and not in some back room somewhere."

Potential reforms

There are numerous ideas for reform. A report by Mr. Martin's task force, for instance, for the first time calls for a number of reforms for judicial elections. They include the recusal of judges who receive excessive campaign contributions from parties before their court and fund-raising "blackouts" until the beginning of the campaign season, so that judges are not eligible for political gifts during their whole tenure.

Another compromise solution is the retention election. This yes-or-no vote at the end of each term is intended to preserve voters' prerogative to weed out unsatisfactory judges while dispelling the political crowd surrounding contested ballot races.

For the most part, retention elections have had the desired effect, says Seth Andersen, director of the Judicature Society's Hunter Center on Judicial Selection. But he cites the case of a much-respected Tennessee supreme court justice as an example of what can go wrong when one highly charged issue consumes public opinion. The justice lost her seat in 1996 in a retention election because of a single decision commuting a death sentence for lack of evidence.

"What we've learned is the critical component of a retention election is having meaningful, objective, and comprehensive information about a judge's total job performance before the voter," Mr. Andersen says. Five states - Alaska, Arizona, Colorado, Utah, and, as of this election cycle, Tennessee - currently accomplish this by distributing voter guides to the public, compiled by an independent committee of judges, legal professionals, and other citizens.

"These states have greatly reduced the cost of running a campaign, which reduces the appearance of impropriety," Andersen says. "It may be the best system we've got going ... right now."